By Tony Mauro, From Legal Times,

The descendants of the late athlete want high court to allow reburial on Indian land in his native Oklahoma.

Descendants of the late legendary athlete Jim Thorpe on Tuesday asked the U.S. Supreme Court to let them re-bury his remains on Indian land in his native Oklahoma.

The plaintiffs in Sac and Fox Nation of Oklahoma, William Thorpe and Richard Thorpe v. Borough of Jim Thorpe invoked the Native American Graves Protection and Repatriation Act of 1990 as justification for their removal of his remains from a cemetery in Jim Thorpe, Pennsylvania, named after him as part of an effort to capitalize on his fame.

Thorpe’s estranged third wife interrupted his Indian funeral in Shawnee, Oklahoma, in1953 and seized the remains. She then worked out a deal with two Pennsylvania towns to merge under the name of Jim Thorpe, where he was buried. Thorpe had never set foot in the area during his lifetime.

Though some of his relatives were content with the arrangement, sons William and Richard have been trying for years to have him re-buried in Oklahoma. They gained new hope after passage of the 1990 law to help Native Americans recover remains and burial sites plundered by government agencies, universities, museums and tourist businesses throughout American history.

“This represents a long struggle by Indian tribes and people to have their religious practices, their burial customs, their culture and beliefs, respected by the greater society in America,” said Stephen Ward of Conner & Winters, the Tulsa, Oklahoma, firm that represents the sons and the tribe on the petition.

Thorpe, a gold-medal Olympic winner as well as a famed baseball and football player, was voted the greatest athlete of the 20th century in a 2000 ABC Sports poll.

A federal district court ruled in favor of the sons, finding that the law covered acquisitions by a municipality, which fell under the definition of a museum: “any institution or State or local government agency (including any institution of higher learning) that receives Federal funds and has possession of, or control over, Native American cultural items.”

But the U. S. Court of Appeals for the Third Circuit reversed, finding that applying the law to the circumstances of the Thorpe case was a “patently absurd result,” even if the letter of the law appears to cover a municipality as a museum. The panel also noted that Thorpe’s wife had the legal right as next-of-kin to decide where Thorpe should be buried.

“It is clear that the congressional intent to regulate institutions such as museums and to remedy the historical atrocities inflicted on Native Americans, including plundering of their graves, is not advanced by interpreting ‘museum’ to include a gravesite that Thorpe’s widow intended as Thorpe’s final resting place,” the panel stated.

The petition filed Tuesday at the Supreme Court argues the Third Circuit ruling improperly narrowed a law that was, in fact, meant to cover institutions including municipalities. Brian Wolfman of Stanford Law School, who is also on the brief, said the Third Circuit ruling “threatens to blow a hole” in the federal law that could be used as an excuse to ignore the repatriation process.

The panel’s invocation of the “absurdity doctrine,” the plaintiffs said, amounts to a separation of powers problem because “it disrupts the constitutional balance between legislative and judicial power,” Wolfman said.

“The federal judges decided to substitute their judgment of the judgment of Congress,” said Richard Guest of the Native American Rights Fund. Guest said the jurisdiction of the Third Circuit does not include any federally recognized tribes, so is “not a circuit that has a lot of cases” dealing with the rights of Native Americans.

Thorpe’s son William said in a statement that the “case extends beyond our family. It represents the proper recognition of a law intended to protect the rights of Native Americans.”

IMAGE: Jim Thorpe Memorial. Photo: Doug Kerr via WikiMedia Commons

For more on this story go to: http://www.nationallawjournal.com/legaltimes/id=1202728177637/Jim-Thorpes-Sons-Take-Burial-Dispute-to-Supreme-Court#ixzz3c0emHWUY